September Antitrust Bulletin

September 8, 2016

HSR Act Violation Costs Caledonia Investments $480,000

On August 10, 2016, a London-based investment trust company, Caledonia Investments plc, agreed to pay $480,000 in civil penalties to settle Federal Trade Commission (FTC) allegations that the company violated federal premerger reporting laws. In 2014, Caledonia allegedly failed to report its purchase of voting shares in Bristow Group, Inc., as required under the Hart-Scott-Rodino Act (HSR Act). Because Caledonia had violated the HSR Act previously in 1996, the FTC sought civil penalties even though Caledonia asserted that its failure to report its purchase of voting shares was inadvertent.

Seventh Circuit Reverses Trial Court Finding No Violation of the Robinson-Patman Act

On August 12, 2016, the Seventh Circuit rejected claims by Woodman’s Food Market Inc. that Clorox’s refusal to sell bulk-size products to Woodman’s was price discrimination. In reversing the trial court, the Seventh Circuit ruled that Clorox’s decision to sell certain retailers larger-size packages of its products does not have an anticompetitive effect and therefore does not violate the Robinson-Patman Act’s ban on manufacturers giving promotional services to only certain retailers. Notably, the Seventh Circuit distinguished “discount warehouses such as Costco and Sam’s Club” from “[o]rdinary grocery stores,” and included Woodman’s in the latter category despite Woodman’s arguments that its stores bear a closer resemblance to (and compete directly with) warehouse stores.

FTC and Antitrust Division of DOJ to Update IP Licensing Guidelines

The FTC and the Department of Justice’s (DOJ’s) Antitrust Division are updating the Antitrust Guidelines for the Licensing of Intellectual Property, also known as the IP Licensing Guidelines. The agencies have determined that some revisions are in order because the IP Licensing Guidelines should accurately reflect intervening changes in statutory and case law. The IP Licensing Guidelines state the agencies’ antitrust enforcement policy with respect to the licensing of intellectual property protected by patent, copyright and trade secret law, and of know-how, and were issued in 1995. The FTC and DOJ’s Antitrust Division are seeking public comment on the proposed update of the guidelines. Interested parties may submit public comments until September 26, 2016.

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